Appeal from the Circuit Court of Cook County, the Hon. James
M. Bailey, Judge, presiding.
JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 30, 1983.
Following a jury trial in the circuit court of Cook County, the defendant, Luis Garcia, was convicted of four counts of murder, four counts of attempted murder, 10 counts of armed violence, eight counts of armed robbery and five counts of aggravated battery. Defendant was also convicted on a single count each of rape, aggravated kidnaping, deviate sexual assault, taking indecent liberties with a child, and conspiracy. The State sought the death penalty and, after a sentencing hearing, the same jury determined that defendant was eligible for the death sentence and that there were no mitigating factors sufficient to preclude imposing that penalty. Although the trial court then sentenced defendant to death on his murder conviction, it did not impose any sentences on defendant's other convictions. The death sentence was stayed by the trial court as required by our Rule 609(a) (73 Ill.2d R. 609(a)), and defendant appealed directly to this court pursuant to section 4(b) of article VI of our constitution of 1970 as implemented by section 9-1(i) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(i)) and our Rule 603 (87 Ill.2d R. 603).
The 36 crimes for which defendant was convicted in this cause were committed during a period of only several hours. The testimony introduced at trial indicated that on January 7, 1980, defendant and an accomplice, Roger Llaguna, entered a small grocery store on Wabansia Avenue in Chicago at approximately 6:30 p.m. William and Aida Pagan, the owners of the store, were in the sales area of the establishment, as was an employee, Miguel Hernandez. Also present was a neighborhood resident, Juan Jiminez. Mr. Hernandez testified that Llaguna, who was armed with two handguns, proceeded alone to the rear of the sales area, where he immediately shot both William Pagan and Juan Jiminez twice. Autopsies revealed that William Pagan had actually received three bullet wounds and that Juan Jiminez had suffered two bullet wounds. Llaguna then returned to the front of the store and shot Miguel Hernandez in the head, neck and back. As he was falling to the floor, and just before losing consciousness, Mr. Hernandez saw defendant, who was armed with one handgun, shoot Aida Pagan.
Another witness, Melvin Crawford, testified that he was about to enter the Pagans' grocery store at approximately 6:45 that evening when he encountered a man with two guns leaving the store. That individual, whom Mr. Crawford later identified as Roger Llaguna, asked as to what Mr. Crawford was looking at; Mr. Crawford responded that he had not seen anything and, after backing away a short distance, ran down the street.
Upon their arrival, Chicago policemen found Miguel Hernandez, who was bleeding profusely, sitting on a carton at the front of the store. Aida Pagan was found lying across William Pagan, her husband, and next to Juan Jiminez, both of whom appeared to be already dead. Although she was lapsing in and out of consciousness, Mrs. Pagan was able to indicate that they had been attacked by two Latinos. Aida Pagan was declared dead on arrival when transported to a hospital, as were William Pagan and Juan Jiminez. The police also found that the store's cash register, which Mr. Hernandez testified had contained "folding money," was devoid of currency. A description of a car which had pulled away from the store just after the shootings was obtained by investigators from two neighbors who had heard gunshots. This description was later included in a city-wide police radio broadcast.
After leaving the store, which was located at 3022 West Wabansia, defendant and Llaguna apparently went to the Lincoln Tavern, located at 1858 West Wabansia. They entered the tavern at approximately 7:15 p.m. and, after seating themselves near the middle of the bar, ordered beer from the barmaid, Dorothy Oszkandy. The only other occupants of the bar were Christine Mroz, Walter Lesniak and Dorothy Oszkandy's 10-year-old daughter, Denise. Christine Mroz, who had moved to the United States from Poland only four years earlier, was related to the owners of the tavern and lived with her relatives in living quarters which were connected to the tavern. She often sought to improve her command of the English language by talking with patrons of the tavern. That evening she was conversing with Walter Lesniak, a regular customer in the tavern. They were seated near the cash register, which was located at the front of the tavern. Miss Mroz concluded her conversation with Mr. Lesniak soon after defendant and Llaguna arrived and returned to her living quarters, passing through the rear of the tavern where Denise Oszkandy was watching television. Shortly thereafter, Clara Satha, an elderly woman who was also a regular customer, entered the tavern and joined Mr. Lesniak at the bar. Defendant then approached the front of the tavern and, after glancing out the window, turned and said, "This is a stick-up." Brandishing a handgun, defendant warned Dorothy Oszkandy not to reach for a gun and ordered her to give him the money in the cash register. Defendant also ordered Walter Lesniak and Clara Satha to place all of their money on the bar. When Mrs. Oszkandy turned slightly to check on her daughter, defendant shot her in the side and then shot Walter Lesniak in the side. In response to defendant's repeated demand, Mrs. Oszkandy staggered to the cash register and managed to place the money onto the bar before losing consciousness.
Meanwhile, Roger Llaguna had ordered Denise Oszkandy to join her mother behind the bar and she had begun to do so when defendant shot Mrs. Oszkandy. Llaguna then pulled Denise back and forced her to accompany him through the passageway leading to the adjoining living quarters. Denise Oszkandy testified that they encountered Christine Mroz in the dining room. After Miss Mroz rose from her chair, Llaguna fired three shots at her, causing her to fall to the floor. An autopsy later revealed that Miss Mroz died of a gunshot wound to the head.
Defendant and Roger Llaguna then left the tavern, taking Denise Oszkandy with them in their car. After ordering her to keep her head down, they drove to an unoccupied basement where both men sexually assaulted her and engaged in a number of deviate sexual acts, including inserting the barrel of a handgun into her vagina. Denise Oszkandy was then forced back into the car.
Officer Richard Spiegel, a Chicago policeman, testified that he and his partner were patrolling in an unmarked squad car when they received a radio message which updated an earlier broadcast describing the car seen leaving the scene of the grocery store murders. The supplementary broadcast informed them of the abduction of Denise Oszkandy. They proceeded to join in the search and, upon arriving in the neighborhood of the crimes, spotted a car that matched the description and which police later discovered was driven by defendant. The plainclothes officers signaled a marked patrol car to follow them, and when those officers momentarily spotted a little girl's head pop up between the figures of the other two occupants of the suspicious car, they attempted to stop that car. A high-speed chase ensued during which Roger Llaguna fired several shots at the police.
Defendant, after losing control and crashing the car into a parked vehicle, jumped out and attempted to run away. Officer Spiegel, who had been shot in the leg while leaving his own car, shot defendant in the hand, causing him to fall to the ground, where he was placed under arrest. At the time of his arrest, defendant was unarmed, but a fully loaded .38-caliber Rohm revolver was found on the driver's side of the front seat in the car which he had been driving. Roger Llaguna, who had fled into an alley, was killed while engaging in a gun battle with the police officers who pursued him. Police investigators recovered a Smith & Wesson .357-caliber magnum revolver next to Llaguna's body. Denise Oszkandy, who had not sustained any injuries in the crash itself, was found in the car driven by defendant and was taken to a local hospital for examination and treatment.
At trial, a ballistics expert testified that while some of the firearm evidence recovered at the grocery store and the tavern was unsuitable for analysis, the identifiable evidence conclusively demonstrated that Aida Pagan had been shot both by the .357 Smith & Wesson revolver recovered from Roger Llaguna and the .38 Rohm revolver recovered from the driver's seat in the crashed getaway car. In addition, the expert was able to state that William Pagan and Juan Jiminez had both received at least one wound each from the .38 Rohm revolver, which had also been used, in his opinion, to shoot Dorothy Oszkandy. The physical evidence also showed that Christine Mroz had been shot with the Smith & Wesson .357 revolver.
Defendant, attacking both his convictions and the imposition of the death penalty, raises a number of issues pertaining to his trial and sentencing hearing. We consider first the challenges to the fairness of defendant's trial, detailing additional factual matters not set forth above where necessary. Prior to trial, the defendant unsuccessfully moved for an order suppressing any reference to pretrial identification of defendant both by Miguel Hernandez, the only surviving witness to the grocery store killings, and by Walter Lesniak, one of the victims at the tavern. Defendant also sought to suppress any in-court identification by those same witnesses claiming that the identification evidence constituted the product of procedures on the part of the police which were "unnecessarily conducive to irreparable mistaken identification." The testimony at the hearing on the motion to suppress identification testimony by Walter Lesniak indicated that while he was receiving treatment in a hospital emergency room, Mr. Lesniak was told by a police officer that Denise Oszkandy had been safely recovered and that two suspects had been apprehended. Mr. Lesniak had also seen a newspaper article concerning the shootings, accompanied by a large photograph of defendant, but because he was not wearing his glasses and only glanced at the item in a cursory fashion, had not learned any details of the incident. Either one or two days after the shootings, Mr. Lesniak was visited in the hospital by Officer Curtis, who showed Mr. Lesniak a lineup photograph depicting five individuals, including defendant. Both Officer Curtis and Mr. Lesniak testified that Officer Curtis left without having discussed the incident immediately after Mr. Lesniak identified one of the individuals in the lineup. When asked at the hearing if the person he had identified in the lineup photo was the same person who had appeared in the newspaper photograph, Mr. Lesniak stated, "He looked a little bit different. Uh, the picture I saw in the Tribune, uh, was very — . Well, he was disheveled and, well, dirty, et cetera, et cetera."
The trial court sustained objections to numerous questions by defendant's attorney concerning conversations between Walter Lesniak and police officers while Mr. Lesniak was in the hospital emergency room, the length of time that Mr. Lesniak had been in the tavern prior to the shootings, the description of the assailants which Mr. Lesniak had given police at the time of the incident, and the type of medication which Mr. Lesniak was receiving at the time of the photographic identification. At the close of the hearing, defense counsel stated for the record that he considered the questions which he had sought to ask important because of the fact that Mr. Lesniak had seen the newspaper photograph of defendant, but he declined to offer any argument on behalf of the motion and rested on the testimony of Officer Curtis and Walter Lesniak.
The hearing held pursuant to the motion to suppress the identification testimony of Miguel Hernandez was complicated by the fact that Mr. Hernandez, who spoke no English, was forced to testify through an interpreter. It is apparent from the record that the translation process created confusion at times on the part of Mr. Hernandez and the examining attorneys both during the suppression hearing and, despite the substitution of a different interpreter, at trial. On its face, the testimony of Mr. Hernandez, who was the only witness at the suppression hearing, seems somewhat ambiguous and inconsistent. That testimony revealed that he was visited by a police officer in the hospital when he first regained consciousness five days after being shot and that the officer had shown Mr. Hernandez a photograph of five persons. Mr. Hernandez stated that he had pointed out one of the individuals when asked if he could identify the person that had shot him. After a number of intervening questions concerning the length of the officer's visit and the nature of their conversation, Mr. Hernandez stated that he had taken the photograph into his own hands when viewing it and that while he was holding it, the officer had pointed to defendant and asked if he was the person who had come into the grocery store. On cross-examination, Mr. Hernandez testified that he had pointed out his selection to the policeman and that the policeman had not told him which man to pick out.
In his attack on the trial court's denial of the motions to suppress the identification testimony of Miguel Hernandez and Walter Lesniak, defendant argues that he was denied a fair hearing on the motions and, in any event, that the trial court erred in their denial. Defendant, referring us to People v. Robinson (1970), 46 Ill.2d 229, asserts that the hearings were unfair because the trial judge precluded defense counsel from making an effective inquiry into the reliability of the witnesses' identification testimony by sustaining objections to questions designed to reveal whether there was any independent basis for the identifications. This argument, however, misapprehends the allocation of the burden of persuasion in a suppression hearing. Our decisions have made clear that the defendant must first establish that the pretrial identification procedure was unnecessarily suggestive and that the evidence will then be suppressed unless the State is able to show by clear and convincing evidence an independent basis of reliability. (People v. McTush (1980), 81 Ill.2d 513, 520; People v. Blumenshine (1969), 42 Ill.2d 508, 511. See People v. Bryant (1983), 94 Ill.2d 514, 520.) The inquiry prescribed in Blumenshine and repeated in Robinson, mandating consideration of such factors as how well the witness was able to observe the criminal act, the accuracy of any description furnished by the witness, and whether the witness had been previously acquainted with the defendant, is relevant only to evaluate the independent ...